By order dated October 27, 1995, the Authority granted the
Petitioner's (NFFE) application for review of the Regional Director's (RD)
decision and order in which the RD found that an election petition filed by
NFFE was barred by a collective bargaining agreement executed between the
Intervenor (AFGE) and the Agency.(1) The Authority granted review as to the following issue:

Was the petition for exclusive recognition, filed on the same day
that the Agency and the incumbent exclusive representative executed a
collective bargaining agreement, timely under section 2422.3(c) of the
Authority's Regulations?

In response to the Authority's order granting review, only AFGE filed a
brief.

For the reasons that follow, we find that the agreement executed
between the Agency and AFGE barred the election petition filed by NFFE and that
the petition should be dismissed as untimely filed. We affirm the RD's decision
and order.

II. Background and Regional Director's Decision

On November 4, 1994, NFFE filed a petition for an election in a
bargaining unit of certain employees at Fort Hood, Texas.(2) On the same date, the Agency and
AFGE, the incumbent exclusive representative, executed a collective bargaining
agreement covering the bargaining unit in which NFFE petitioned for an
election.

The RD concluded that the agreement barred the petition and that the
petition should be dismissed. In reaching this conclusion, the RD relied on
Deluxe Metal Furniture Company, 121 NLRB 995, 999 (1958) (Deluxe
Metal Furniture), which holds, among other things, that a contract that has
been executed on the same day that a petition for an election is filed "will
bar an election if [the contract] is effective immediately or retroactively and
the employer has not been informed at the time of execution that a petition has
been filed." The RD found that NFFE had not informed the Agency prior to
execution of the agreement that it had filed the petition. The RD also found
that ratification of the agreement was not required and that the executed
agreement barred the petition at the time of filing even though the Agency head
disapproved the executed agreement on November 23, 1994.(3)

NFFE asserts that its petition is not barred by the agreement executed
on November 4 because the filing of the petition occurred earlier in the day
than execution of the contract. NFFE also alleges that unusual circumstances
surrounded the execution of the agreement. Specifically, NFFE contends that the
Agency convened a bargaining team and negotiated the agreement after the
petition was filed and after the Agency received notice that a petition was
being filed. NFFE also claims that the agreement lacked "vital language,"
relying on testimony by one employee that the negotiations failed to address
the issues of a smoking policy and beeper compensation. Application at 6.
NFFE also contends that the commanders of the tenant activities covered by the
agreement signed a blank sheet of paper without having seen a copy of the
agreement.

Alternatively, NFFE disputes the RD's application of Deluxe Metal
Furniture, contending that, prior to execution of the agreement, it
provided adequate notice to the Agency that it was going to file an election
petition. NFFE also argues that even if it did not provide adequate notice, the
agreement did not bar the petition because it did not become effective
immediately or retroactively. Additionally, NFFE contends that the contract did
not bar the petition because it was subsequently disapproved by the Agency head
pursuant to section 7114(c) of the Federal Service Labor-Management Relations
Statute (Statute) and was not subjected to required membership
ratification.

B. AFGE

AFGE proposes that the Authority adopt the following standard, a
modification of the standard articulated in Deluxe Metal Furniture, for
the purpose of determining whether a collective bargaining agreement bars an
election petition that is filed on the same day that the agreement is
executed:

Once a contract has been executed by the parties, if no further
action is needed to effectuate the agreement, except for agency head
review, and the agency did not have knowledge of the petition, then the
contract will act as a bar to petitions. [Emphasis in
original.]

AFGE Brief at 5.

AFGE asserts that, under this standard, the collective bargaining
agreement executed on November 4 barred the NFFE petition.

AFGE contends that neither it nor the Agency had knowledge of the NFFE
petition prior to the contract's execution on November 4 and that the
agreement constituted a lawful written collective bargaining agreement, as
defined by the Authority in U.S. Department of Health and Human Services,
Social Security Administration, 44 FLRA 230 (1992) (SSA
I).(5) AFGE maintains that agreement was
not conditioned on membership ratification.

IV. Analysis and Conclusions

A. A Contract Bars a Rival Petition Filed onthe Same Day as
the Contract Is ExecutedUnless the Petitioner Notifies the Agency
ofthe Filing of the Petition

1. Applicable Legal Principles and PrecedentsUnder the
Statute

Section 7111(f)(3) of the Statute provides that exclusive recognition
shall not be accorded a labor organization "if there is then in effect a lawful
written collective bargaining agreement between the agency involved and an
exclusive representative" unless conditions specified by that subsection, but
not relevant here, are met. Underlying legislative history confirms that this
statutory provision for what is known as the "contract bar" is intended to lend
stability to collective bargaining relationships by precluding continuous
challenges to an exclusive representative's status, while at the same time
giving employees the opportunity at reasonable intervals to choose, if they so
desire, a new representative. H.R. Rep. No. 1403, 95th Cong., 2d Sess. 46,
reprinted in Committee on Post Office and Civil Service, House of
Representatives, 96th Cong., 1st Sess., Legislative History of the Federal
Service Labor-Management Relations Statute, Title VII of the Civil Service
Reform Act of 1978 (Comm. Print 1979) at 692.

Section 2422.3(c) of the Authority's Regulations extends the contract
bar to election petitions filed during the period of agency-head review under
section 7114(c) of the Statute.(6) Execution of the agreement triggers the period of agency head
review.(7)International Organization of
Masters, Mates and Pilots and Panama Canal Commission, 36 FLRA 555,
560 (1990). If, during that period, the agency head disapproves the agreement,
it ceases to serve as a bar to a challenging petition on the date of
disapproval. National Park Service, Harpers Ferry, West Virginia,
15 FLRA 786, 789 (1984) (Harpers Ferry). Thus, during the interim
period between the date of disapproval of the original agreement and the
execution of a subsequent agreement, there is no bar and a petition filed
during the interim period is timely. Id.

2. An Executed Contract Generally Bars anElection Petition
Filed on the Same Day ThatExecution Occurs

Although Authority precedent does not address the question of whether a
contract bars an election petition that is filed on the same day the contract
is executed, there is private sector precedent on this point. Under relevant
private sector precedent, an executed contract generally bars an election
petition filed on the same day as execution. Deluxe Metal Furniture,
121 NLRB at 999.

The contract bar concept originated under the National Labor Relations
Act where contract bar rules were developed through National Labor Relations
Board (NLRB) case law. See, e.g., NLRB v. Circle A &
W Products Co., 647 F.2d 924, 926 (9th Cir. 1981) (Circle A &
W) ("The [contract bar] rule does not find its source in the express
language of the statute, nor is it judicially compelled."). In the private
sector, the contract bar permits an existing collective bargaining agreement
not exceeding a specified period (currently 3 years) to bar a petition for
redetermination of representation in most instances. E.g., id.
The purpose of the contract bar in the private sector is to provide a balance
between the competing statutory objectives of (1) stability in industrial
relations, and (2) employee freedom of choice in selecting bargaining
representatives. Leedom v. IBEW, 278 F.2d 237, 242
(D.C. Cir. 1960).

As the purpose and function of the contract bar are the same in both
the Federal and private sectors, it is appropriate to consider private sector
precedent and to follow a similar approach in interpreting and applying
contract bar provisions under the Statute. Cf.Naval Facilities
Engineering Service Center, Port Hueneme, California, 50 FLRA 363, 367
(1995) (as differences that relate to successorship principles in private and
Federal sectors are not significant, it is appropriate to bring the approach
for determining successorship in the Federal sector into closer alignment with
private sector treatment of the issue). Accordingly, consistent with the
private sector rule established in Deluxe Metal Furniture, we will find
that under section 2422.3(c) an executed contract bars an election petition
that is filed on the same day as execution if all that remains for effectuation
of the agreement is agency head review.(8) As in the private sector, this rule encompasses the entire
day on which execution of the collective bargaining agreement occurs. This rule
is preferable to an approach requiring parties to establish as an evidentiary
matter the precise moment in time when execution and filing occur because such
approach would be prone to disputes that could cause delays in representation
matters. For this reason, we reject NFFE's suggestion that the existence of a
bar should be decided by whether execution or the filing of the petition occurs
first and we adopt instead an approach that is a long-standing one in the
private sector and has withstood the test of time. We emphasize that the rule
we are adopting is limited to the uncommon circumstance where a petition is
filed on the same day as a contract is executed covering the same employees as
the petition.

3. When Appropriate Notice of the Filing of aPetition Is
Given, the Executed Contract WillNot Serve as a Bar

In Deluxe Metal Furniture, the NLRB carved one exception to the
general rule that an executed agreement prevails over an election petition
filed on the same day as execution. Under this exception, the agreement does
not bar the petition if at the time of execution the employer has notice that a
petition has been filed. This exception provides a means by which a
non-incumbent union can defeat efforts by an agency and incumbent exclusive
representative to thwart employee freedom of choice by colluding in the
negotiation and execution of an agreement in order to bar a rival election
petition. The exception thereby permits consideration of employee choice in
circumstances where it appears particularly compelling. We find that applying a
similar exception effectuates the policy underpinnings of the contract bar that
were articulated in the legislative history of the Statute. That is, qualifying
the general rule with an appropriate notice exception provides balance between
the interests of stability in collective bargaining relationships and employee
choice of representative. Cf.Circle A & W, 647 F.2d
at 926 ("Where the objectives of contract stability and adequate employee
representation conflict, the Board must exercise its discretion to reach an
appropriate balance, but it must give explicit recognition to both sides of
this balance.").

To this end, we adopt a notice exception similar to that applied in
Deluxe Metal Furniture. In the interests of (1) providing parties
with clear guidance as to what is expected of them in filing representation
petitions and (2) reducing the potential for disputes that will delay the
resolution of representation issues, we set forth the following requirements
that the notice must meet in order to defeat a collective bargaining agreement
that would otherwise operate as a bar.

The notice must be in writing and convey that the petitioning union
has taken all steps necessary to file a petition with the Authority.(9) The notice must be served on a person having authority over
agency negotiations, which could extend to and include the head of the agency,
and must be received on the same day that the petition is filed(10) but prior to the point at which
the collective bargaining agreement is executed. Receipt of the notice must be
verifiable through documentary evidence.(11)

In summary, we conclude that where a petition is filed on the same day
that an agreement is executed, and all that remains is agency-head review
pursuant to section 7114(c), the agreement will bar the petition unless at the
time of execution the agency received notice, which meets the above
specifications, that all steps necessary to file a petition had been taken.

B. The Petition in This Case Is Untimely

In this case, it is undisputed that the petition was filed on the same
day that an agreement was reached between the Agency and AFGE. Moreover, all
that remained was agency-head review.

In this latter regard, we reject NFFE's claim that the agreement did
not operate as a bar because it lacked required membership ratification. While,
as the RD acknowledged, there is some evidence in the record of this case that
prior collective bargaining agreements had been subject to ratification, there
is no basis for concluding that AFGE had conditioned execution of the agreement
reached on November 4 on ratification by its members. The contractual provision
on which NFFE relies to support its claim (Article 2, section 3) does not,
standing alone, constitute a ratification requirement.(12) As written, this contractual
provision is limited to addressing what will occur in the event that the
agreement is subjected to and fails union ratification. The record does not
establish that any source of a membership ratification requirement existed with
respect to the agreement executed on November 4.(13)Cf.SSA II,
46 FLRA at 1405 (agency had notice that agreements with union were
subject to ratification and the union did not waive its right). Instead, we
find that all that remained once agreement was reached on November 4 for
the contract to take effect was agency-head review under section 7114(c).

We also reject NFFE's claim that the Agency head's subsequent
disapproval of the agreement removed the contract as a bar to the petition in
this case. The petition was filed prior to the date on which the Agency head
disapproved the agreement and, consequently, the agreement served to bar the
petition at the time of filing. SeeHarpers Ferry, 15 FLRA
at 789 (when an executed agreement is disapproved by an agency head
pursuant to section 7114(c), it no longer serves as a bar to petitions filed
during the interim period between disapproval and successful conclusion of a
subsequent agreement).

We reject NFFE's contention that unusual circumstances precluded the
agreement reached on November 4 from operating as a bar. Even assuming
that the Agency was aware that the filing of a petition was imminent, the speed
with which the agreement was negotiated and executed, standing alone, does not
establish an unusual circumstance. Moreover, review of the agreement reached
reveals that with some exceptions it mirrored the predecessor agreement between
the Agency and AFGE and contained substantial terms and conditions of
employment sufficient to stabilize the bargaining relationship between the
parties. That the negotiations and the resulting agreement may not have
encompassed all possible conditions of employment does not preclude the
agreement from operating as a lawful collective bargaining agreement that can
bar the filing of a petition for exclusive recognition. SeeSSA
I, 44 FLRA at 238-40. As to NFFE's claim that some commanders
signed a blank sheet of paper, the record shows that the commanders were not
members of the bargaining team; therefore, the fact that they may have signed
the agreement reached by their duly authorized bargaining representatives
without fully reviewing it does not raise a question about the validity of the
agreement.(14)

Finally, we reject NFFE's contention that it provided notice of the
filing of the petition, which precluded the executed agreement from operating
as a bar. In this regard, NFFE claims that an employee informed an Agency
representative in a telephone conversation on November 2, 1994, that a
sufficient showing of interest had been collected and would be delivered to a
representative who would then file the petition.(15) This claimed notice does not constitute notification to the
Agency that NFFE had taken all steps necessary to file a petition with the
Authority and, thus, was not adequate to preclude the collective bargaining
agreement from operating as a bar to the petition.(16)

Based on the foregoing, we conclude that the petition was barred by the
agreement executed on November 4, 1994, and that the petition was untimely
filed.

2. The unit description is not at issue
in this case and, therefore, is not set forth.

3. The RD found that a revised
agreement was approved by the Agency head on December 1, 1994.

4. Although NFFE did not file a brief
in response to the order granting its application for review, the arguments
presented in conjunction with the application are relevant to the issue on
which review was granted.

[I]n order for an agreement to constitute a "collective bargaining
agreement" within the meaning of section 7111(f)(3) that can bar the filing of
a petition for exclusive recognition, an agreement must contain substantial
terms and conditions of employment sufficient to stabilize the bargaining
relationship between the parties to the agreement.

(c) When an agreement covering a claimed unit has been signed and
dated by the activity and the incumbent exclusive representative, a petition
for exclusive recognition or other election petition will not be considered
timely if filed during the period of review by the head of an agency as set
forth in 5 U.S.C. 7114(c), absent unusual circumstances.

Although amendments to the Authority's Regulations governing
representation proceedings have been published, they will not be effective
until March 15, 1996, and, therefore, do not apply to the petition filed
in this case. 60 Fed. Reg. 67288, 67288 (1995) (current regulations govern all
cases in which representation petitions are filed before March 15, 1996).
However, we see no reason that we would reach a different conclusion under the
amended regulations.

7. A union is entitled to condition the
execution of an agreement on ratification by its members provided: (1) the
employer has notice of the ratification requirement, and (2) there is no
waiver of the right by the union. E.g., Social Security
Administration, 46 FLRA 1404, 1404 (1993) (SSA II).

8. The requirement in Deluxe Metal
Furniture that a contract be effective immediately or retroactively in
order to bar a petition filed on the same day that the agreement is executed is
not relevant in the Federal sector where, as a consequence of the requirement
under section 7114(c) of the Statute that executed agreements be subject to
agency-head review, a contract cannot be effective immediately or retroactively
upon execution. See, e.g., West Point Elementary School
Teachers Association, NEA and United States Miliary Academy, West Point
Elementary School, 34 FLRA 1008, 1021 (1990).

10. Under both the current and revised
regulations, a petition is deemed filed when it is received by the appropriate
Regional Director. 5 C.F.R. § 2422.2(e)(4); 60 Fed. Reg.
67288, 67293 (1995) (to be codified at 5 C.F.R. § 2422.5(c)).

11. Among other things, a copy of the
notice showing time and date of receipt would constitute adequate verification.

In the event a portion [of the agreement] is not approved by the head
of the agency or does not have union ratification, only that portion will be
referred back to the table for further negotiations.

13. In view of the absence of a
ratification requirement, the question of whether ratification, if required,
must in all instances precede execution is not before us in this case.

14. In view of the fact that the
commanders were not on the bargaining team, we need not address whether similar
actions by bargaining team members would support a finding that contract
negotiations were a sham or what the legal consequence of such a finding would
be.

15. The Agency representative who
allegedly received this notice testified that he did not recall being told that
adequate signatures had been obtained for a showing of interest. However,
resolution of this factual dispute is unnecessary to the disposition of this
case.

16. In view of the fact that the
content of the alleged notice was deficient, it is unnecessary to address
whether the notice failed in other respects to meet the requirements set forth
above.